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2012 DIGILAW 376 (CAL)

Tarit Kumar Karak v. UNION OF INDIA

2012-04-30

ANINDITA ROY SARASWATI, NISHITA MHATRE

body2012
Judgment :- Nishita Mhatre, J. 1. Aggrieved by the decision of the Central Administrative Tribunal, Calcutta Bench dated 10th July 2007, the petitioner has approached this Court. 2. On 29th June 1992, the petitioner was employed as a Trainee Assistant Driver (Electrical). The training period was for 18 months. According to the petitioner, his training period was curtailed to six months by an order issued on 18th February 1993. He was then put in independent charge to run a locomotive as an Assistant Driver from 7th March 1993. The petitioner met with an accident arising out of and in the course of employment. As a result of this accident the petitioner was medically de-categorised w.e.f. 4th November 1993. On the basis of the policy of the Railways to employ drivers who have been medically de-categorised for other work, the petitioner was employed as a clerk from 7th February 1994. According to the petitioner he is entitled to running allowance as he was paid this allowance while he was working as an Assistant Driver for the months of March 1993 and April 1993. The petitioner contends that this running allowance was not paid thereafter to him, neither was it paid to him when he was employed as a clerk although the rules of the Railways require that a medically de-categorised driver’s pay is to be protected. The petitioner, therefore, approached the Tribunal seeking payment of the running allowance. The application of the petitioner has been denied on the ground that the running allowance of `. 446 and `. 471 for the months of March and April 1993 was paid to him due to an error. 3. The learned counsel appearing for the petitioner has assailed the order passed by the Tribunal on several grounds. He submitted that although the petitioner had been paid the running allowance for the months of March and April 1993 it was not continued thereafter. He was invited our attention to the certain documents issued by the Railways which according to him make it amply clear that the petitioner was employed as an Assistant Driver with independent charge after his training was curtailed to six months due to exigencies of work. He has submitted before us that the petitioner was paid `. He was invited our attention to the certain documents issued by the Railways which according to him make it amply clear that the petitioner was employed as an Assistant Driver with independent charge after his training was curtailed to six months due to exigencies of work. He has submitted before us that the petitioner was paid `. 950/- plus running allowance in the months of March and April 1993 and, therefore, it was evident that the allowance should be continued to be paid to him in view of the circular of the Railway Board and the policy of the Railways to protect the pay of a medically de-categorised driver. 4. The learned Advocate for the Respondents has reiterated their contention raised before the Tribunal that, the running allowance was paid to the petitioner by mistake. He has submitted that independent charge cannot be given to an Assistant Driver during training period and, therefore, such a person cannot be considered as running staff entitled to running allowance. 5. Before we proceed further to consider the petitioner’s case it must be noted here that the petitioner had preferred O.A. No. 1362 of 1994 which had been decided by the Central Administrative Tribunal on 13th February 1997. The Application had been dismissed and, therefore, the petitioner preferred W.P.C.T. No. 912 of 2004. The Division Bench by its order dated 7th February 2005 observed that, prima facie, the document produced by the petitioner indicated that some running allowance was paid to him for a particular period of time. This document was not brought to the notice on the Tribunal and, therefore, the Division Bench of this Court remanded the original application for a fresh consideration. The Division Bench further permitted the petitioner to produce such documents as were required in support of his contentions and the Tribunal was directed to decide the matter strictly in accordance with law. 6. There is no dispute between the parties that the petitioner was employed as an Assistant Driver and that he was required to undergo training initially. A letter issued by the Chief Personnel Officer to the Divisional Railway Manager, Eastern Railway on 7th July 1989 prescribes the payment of stipend to a Trainee Assistant Driver (Electrical) and speaks of curtailment of the training period for Trainee Electrical Assistant which is normally for 18 months. Under administrative exigencies this training can be curtailed. A letter issued by the Chief Personnel Officer to the Divisional Railway Manager, Eastern Railway on 7th July 1989 prescribes the payment of stipend to a Trainee Assistant Driver (Electrical) and speaks of curtailment of the training period for Trainee Electrical Assistant which is normally for 18 months. Under administrative exigencies this training can be curtailed. However, the minimum period of training which such trainees must undergo is 24 weeks. They have to pass the written and oral examinations and “road learning through the process of on-job-line–training.” This is subject to the staff having to pass the fitness test for working online independently. The staff would then be under supervision of a nominated driving inspector for the remaining period of 18 months. Such staff was entitled to running allowance besides the special pay mentioned. 7. Similarly, the Railway Board addressed a letter to all the General Managers of the Railways on 27th November 1990 indicating that the General Managers were delegated the power of curtailment of the training of non-gazetted categories whether as apprentice or otherwise. Such trainees who were recruited after curtailment of the training period were entitled to the benefit applicable to such posts except seniority and increments. These orders came into force prospectively from 1st December 1990. On 2nd February 1993 the Eastern Railways issued an office order wherein the name of the petitioner was included as Serial No. 13 showing that he had successfully completed the training period as Trainee Assistant Driver (Electrical). The 32 candidates whose name were mentioned in the office order were required to be put to line training / road learning initially and thereafter on being found suitable they were to be posted as Electrical Assistant in the Scale of 950-1500/- against available vacancies. A stipend of 950/- per month was to be paid to the Trainee Assistant Driver (Electrical) recruited by the Railway Board who was undergoing line training / road leaning. The fitness test were required to be passed by such a candidate for working on line independently and such candidates were to be under the supervision of a nominated Driving Inspector for the remaining portion of the scheduled training of 18 months. 8. The main reason on the basis of which the learned advocate for the petitioner contends that the petitioner’s training had been curtailed is an office order dated 17th February 1993. The order provides that;- “Trainee Asstt. 8. The main reason on the basis of which the learned advocate for the petitioner contends that the petitioner’s training had been curtailed is an office order dated 17th February 1993. The order provides that;- “Trainee Asstt. Drivers whose names were enumerated were being directed to report to the addressee on 18.02.93, after successful completion of initial training.” The petitioners name is listed in Item No. 3. The learned advocate for the petitioner submits that this internal communication of the Railways indicates that there was a curtailment of the petitioner’s period of training from 18 months to lesser period of 6 months. It is for this reason, according to the learned advocate, that the petitioner, being placed in independent charge as an Assistant Driver, was paid running allowance for the months of March and April 1993 and, therefore, he is entitled to the same even after de-categorisation from service. 9. The learned advocate for the respondents has not been able to place any document on record to indicate that the payment of 446 and 471/- made to the petitioner in March and April 1993 respectively, had been made due to an error. There is no communication or office order indicating that such payment had been made due to an error. The material before us shows that the petitioner had completed the theoretical training for the period of 6 months successfully. The petitioner was successful in the written examination and the viva-voce test. The road learning / line training continued for a period of one month after which a letter was issued on 2nd February 1993 posting the petitioner in the Asansol Division as Assistant Electrical Driver. He was paid a stipend of 900 & 50 as special pay, besides this running allowance in terms of the directions contained in the communication dated 07.07.1989. A Competency Certificate was also issued on 6th March 1993 in favour of the petitioner and thereafter he was appointed as an Assistant Driver for performing independent duties w.e.f. 7th March 1993. 10. The documents annexed to the petition, the affidavit-in-opposition and the affidavit-in-reply make it amply clear that the petitioner was appointed as trainee in June 1992. He completed his training which was curtailed due to exigencies of work on 18th February 1993. He was placed in an independent charge as an Assistant Driver at the Asansol Division. 10. The documents annexed to the petition, the affidavit-in-opposition and the affidavit-in-reply make it amply clear that the petitioner was appointed as trainee in June 1992. He completed his training which was curtailed due to exigencies of work on 18th February 1993. He was placed in an independent charge as an Assistant Driver at the Asansol Division. Unfortunately, he met with an accident on 9th April 1993 and after a prolonged hospitalisation he was medically de-categorised on 4th November 1993. The fact that he had earned running allowance for two months prior to his accident has not been denied by the respondents. However, it is contended that this amount was paid to him due to inadvertence, although he had not completed his training period. According to the learned advocate for the respondents the amount paid to him has been recovered by the Railways and, therefore, the petitioner cannot base his claim on the money paid to him inadvertently. 11. In our opinion from the material on record it is evident that the running allowance was paid to the petitioner two months prior to his accident. He ought to have been paid the same even thereafter, especially when he was absorbed in service as a clerk. The communication dated 7th July 1989, does indicate that the Trainee Electrical Assistant who we have been informed are the same as Trainee Assistant Drivers are entitled to running allowance. The communication also prescribes that the training period can be curtailed due to administrative exigencies. This is subject to the trainees undergoing 24 weeks training and passing the written and oral examinations, besides “road learning through the process of on-job-line-training.” As we have noted earlier, the requirement was for such a person to pass the fitness test. The staff was required to be under close supervision of a Driving Inspector for the remaining scheduled training of 18 months. As these trainees were made to work as independent Electrical Assistants or Drivers due to exigencies of work, they were entitled to running allowance. The Tribunal has not considered the fact that the period of training could be curtailed and that on curtailment of the period such staff who was sent on job training were entitled to the running allowance. 12. As a result the decision of the Tribunal is erroneous. The Tribunal has not considered the fact that the period of training could be curtailed and that on curtailment of the period such staff who was sent on job training were entitled to the running allowance. 12. As a result the decision of the Tribunal is erroneous. The Tribunal has not considered the fact that the period of training could be curtailed and that on curtailment of the period such members of the staff who were sent for on-job-line- training were entitled to the running allowance. 13. Accordingly, the impugned order is quashed and set aside. The petitioner is entitled to running allowance after being de-categorised & appointed as clerk with the Railways Establishment. Arrears shall be paid to the petitioner within six months from today. 14. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.